Early High Court Decision 201J 0496 ( October 30, 2011)

The argument that stock acquisition is merely restitution due to the termination of a transfer security contract is without merit.

The plaintiff's assertion that the acquisition of shares is merely redemption due to the termination of the security transfer contract because it is difficult to view the fact that the plaintiff has repaid the shares borrowed by borrowing the shares and paying all the principal and interest of the loan after two months, but it is difficult to view the fact that the plaintiff has repaid the shares borrowed.

2011Guhap3741 Revocation of Disposition of Imposition of Gift Tax

Song AA

Head of the High Tax Office

April 24, 2012

May 15, 2012

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The Defendant’s imposition of gift tax of KRW 565, 218, 110 and KRW 000 against the Plaintiff on November 15, 2010 shall be revoked.

1. Details of the disposition;

A. BBBN Co., Ltd. (hereinafter “BBN”) paid KRW 000 each share price to the unlisted company established for the purpose of the development, manufacturing, and marketing of the data for the installation of the ventilation system on Jan. 3, 2005, and the capital increase on Aug. 22, 2006, during the capital increase by issuing new stocks, 2,000 per share assigned to KimCCC SDR SDR at KRW 00 per share, and KimE, and KimD paid KRW 00 each share price on September 8, 2005.

B. On April 10, 2009, the Plaintiff entered into a share transfer contract (hereinafter referred to as "each of the instant shares") between the Kim EEE and the 2,000 shares of BBN in the name of KimE, and the 1,800 shares of BBN in the name of KimDD on April 17, 2009 (hereinafter referred to as "the shares of this case") between KimDD and KimD, and completed the transfer of each share transfer.

C. As to this, the Defendant: (a) considered that the Plaintiff acquired the instant shares at KRW 000 per share, the market price of which is substantially lower than KRW 000 per share, without justifiable grounds from KimEE, KimD; and (b) calculated the value of donated property pursuant to Article 35(2) of the Inheritance Tax and Gift Tax Act (amended by Act No. 9916, Jan. 1, 2010; hereinafter “Inheritance Tax and Gift Tax”); and (c) imposed on the Plaintiff on November 15, 2010 each disposition (hereinafter “each disposition of this case”).

D. On January 12, 2011, the Plaintiff appealed to the Tax Tribunal, but the Tax Tribunal dismissed the request on June 30, 201.

[Grounds for Recognition] The whole purport of the arguments and arguments between the facts without dispute, Gap evidence 1, Eul evidence 2, Eul evidence 1, Eul evidence 9, Eul evidence 11, Eul evidence 1, 2, and Eul evidence 1, 2, and Eul evidence 2 through 9.

2. Whether each of the dispositions of this case is legitimate

A. The plaintiff's assertion

The Plaintiff borrowed KRW 000 from the KimE, KimDD, etc. on September 8, 2006, paid the instant shares under the name of KimE, KimDDD, and repaid the total amount of the principal and interest on the loan to KimEE, KimDD on November 7, 2006, which was two months after the date of the loan, and the actual owner of the instant shares is the Plaintiff, and the actual owner of the instant shares is the Plaintiff, while the instant shares were established as a transfer for transfer to KimE, and KimD, while the instant shares were returned through each share transfer contract in form from KimEE, KimDDD on April 17, 2009 and April 17, 2009, which is nothing more than restitution due to the termination of the transfer for transfer of shares. Nevertheless, the Defendant’s disposition that applied the provision on the deemed donation of the instant shares under the Inheritance Tax and Gift Tax Act on the premise of the transfer of shares is unlawful.

B. Relevant statutes

The entries in the attached Table-related statutes shall be as follows.

C. Determination

In light of the following circumstances, the above evidence and evidence as mentioned above, Gap evidence 10, 13, and 14 evidence 1 through 3 as a whole, the defendant's disposition of this case is legitimate, and otherwise, the plaintiff's assertion that the acquisition of the plaintiff's stocks under the stock transfer contract of this case is merely recovery due to the termination of the stock transfer contract, on the premise that the acquisition of the plaintiff's stocks under the provision on donation under the Inheritance Tax and Gift Tax Act is a stock transfer.

(1) KimEE and KimDDD acquired 2,00 shares in BBN by paying 00 won each of the shares, and the Plaintiff concluded each of the shares transfer contracts in the above shares in the name of KimEE and KimDDD, respectively, with KimE and KimDD, and completed the transfer of the shares.

(2) The plaintiff asserts that 000 won was borrowed from Kim EE, KimDD, etc. and paid it in full, and that 000 won was paid in full after about 2 months thereafter, and based on each deposit sheet (Evidence A 10-1-3) was presented. The above deposit sheet contains the fact that the yellow FF, the external mother of the plaintiff, has remitted 00 won and 000 won to KimE, and H, the sum of 00 won was remitted to the plaintiff, and that it is difficult to prove that the plaintiff has proved that 00 won and 00 won were remitted to KimE, KimDD, etc., and that it was hard to view that the plaintiff has proved that 00 won and 00 won were remitted to the above D, not to mention that the plaintiff was remitted to Kim FF under the name of MaF, an external corporation in China, but it is difficult to accept that the plaintiff transferred the funds to the above DoE.

(3) If the Plaintiff borrowed the instant shares to KimE, KimD 2, and then offered the instant shares as a collateral for transfer to the borrower, and if so, the Plaintiff concluded a respective pledge agreement and payment contract on the instant shares with Kim EE on December 22, 2006, and KimD, based on each of the following arguments: (a) and (b) each of the sub-pledge agreement (Evidence No. 14, No. 13, No. 14, No. 14, each of the sub-pledge No. 14) were presented to the Plaintiff; (b) the terms of the sub-pledge agreement are 0.0, 200, 200, 200, 200, 300, 3000, 300, 60, 600, 60, 60, 60, 60, 60, 60, 60, 60, 60, 60, 60, 6, 30.

3. Conclusion

Then, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.